On Wednesday, U.S. District Judge Alan Kay, a Reagan appointee, ruled that Hawaii’s ban on same-sex ban is indeed constitutional due to the historical significance of marriage to the welfare of society.
In 1998, Hawaiian voters passed a constitutional amendment giving the legislature power to define marriage as a union between a man and a woman. The lawsuit Jackson v. Abercombie, filed last year by two lesbians and a gay man, sought to overturn the amendment, but Judge Kay sided with the legislature.
Kay wrote in his 117-page ruling:
“Throughout history and societies, marriage has been connected with procreation and childrearing….The legislature could rationally conclude that on a societal level, the institution of marriage acts to reinforce ‘the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other’…[the legislature could] also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex.”
Kay added that the issue should not be “constitutionalized” by the courts but rather democratically, as it was in 1998:
“Nationwide, citizens are engaged in a robust debate over this divisive social issue. If the traditional institution of marriage is to be restructured, as sought by Plaintiffs, it should be done by a democratically-elected legislature or the people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”
Following victories against California’s Prop 8 and DOMA, the decision in Hawaii seems something of a setback. However Gov. Neil Abercrombie is a proponent for equality, having signed civil unions into law last year, refusing to defend the same-sex ban in court and publicly backing an appeal of the decision.
The governor issued this statement following the ruling:
“I respectfully disagree and will join the Plaintiffs if they appeal this decision. To refuse individuals the right to marry on the basis of sexual orientation or gender is discrimination in light of our civil unions law. For me this is about fairness and equality.”
Donald Bentz, executive director of Equality Hawaii echoed Gov. Abercrombie’s sentiments, saying it’s not a matter of “if” marriage equality will come to Hawaii, but “when.”